by Timothy Sandefur
September 6, 2018
During yesterday’s Supreme Court confirmation hearings, Rhode Island Senator Sheldon Whitehouse took a swipe at our colleagues at the Pacific Legal Foundation and at conservative and libertarian public-interest litigators generally, saying that there’s “something rotten” about the fact that non-profit legal foundations “look for cases around the country that they believe they can use to bring arguments before the court.” These groups, claimed Sen. Whitehouse, “hire the client and [bring] them to the court more or less as a prop.” And they do so “in order to make arguments trying to direct the court in a particular direction”—something that Whitehouse viewed with “concern.”
This is a truly bizarre claim to make. Since at least the days of Homer Plessy, public-interest litigators have sought to “direct the court in a particular direction”—i.e., challenge the constitutionality of the law or seek interpretations of laws that will achieve what the litigators believe is a better outcome for the client and for society in general. When the NAACP Legal Defense Fund began the process of trying to overturn Plessy v. Ferguson—a process that took more than half a century—they did so by bringing lawsuits in courts across the country, representing clients for free in an effort to “direct the court in a particular direction.” They finally succeeded when Brown v. Board of Education repudiated Plessy and established a crucial precedent promising equal rights to all Americans regardless of race. To view that as some sort of conspiracy against the people is nothing short of paranoid.
Of course, it would be unethical to “hire” a client—a term that I guess means that the litigator pays the client to act as a plaintiff—but that’s forbidden by the ethics rules and I’ve certainly never seen that done in my 15+ years in public interest litigation.
It certainly didn’t happen in the case of Susette Kelo, whose home was stolen by the state of Connecticut to make way for a development, and who—with the aid of lawyers from the Institute for Justice—took her case for free to the Supreme Court to try to “direct the court in a particular direction.” It certainly didn’t happen in the case of the Sackett family of Idaho, whose property was declared an off-limits wetland by federal officials who didn’t even give the Sacketts a hearing; they were represented for free by Pacific Legal Foundation, who took the case to the Supreme Court to “direct the court in a particular direction.” It certainly didn’t happen in the case of Lauren Boice, who was told she had to shut down her business, Angels on Earth, because she didn’t have a government license she didn’t need; we took her case for free, seeking to improve the direction of the law. Nor did it happen in the Pima County balloon case, where we’re representing taxpayers who are being forced to illegally subsidize a high-altitude balloon tourism company to the tune of $15 million; or the taxpayers of Pinal County, who were forced to pay a discriminatory tax that violates state law; or the taxpayers of Peoria, who are being illegally forced to subsidize another private business. In all these cases and more, we represent real people who are harmed by illegal and unconstitutional government actions—and yes, we do it in order to try to change the law for the better.
Even more bizarrely, Sen. Whitehouse claimed that public interest litigators “rush out, trying to lose cases in order to get before a friendly court.” This allegation is another paranoid attempt to portray as nefarious what is in reality a beneficial, legal, and morally right thing to do. Obviously no litigator tries to lose a case, and any suggestion that they do is absurd. What Whitehouse is trying to say, it seems, is that when a bad precedent is on the books, a lawyer wanting to change that precedent must go to trial court and admit that the law is against him—and lose the case in order to appeal it, to change that precedent. That’s not “trying to lose a case”—it’s trying to win a case through the proper channels. Nor is it some sort of conservative plot; it’s what the NAACP, the ACLU, Planned Parenthood, and all other groups that do public-interest litigation do…because that’s how the process works. To call this “faux litigation” reflects either complete ignorance about how the judicial process operates, or an effort to mislead the public about how public-interest litigators do their job.
This isn’t the first time members of Congress have tried to portray public-interest litigation in this light. During the 1950s and 1960s, representatives of southern states frequently claimed that lawyers challenging segregation were bringing “faux litigation” and “hiring clients” in order to sue over racially discriminatory laws. They even brought lawsuits trying to shut down the NAACP and allied organizations on legal theories called “champerty” and “barratry”—old rules that restricted the ability of lawyers to bring constitutional challenges to unjust laws. In his memoir, Crusaders in the Courts, Jack Greenberg—who worked as Thurgood Marshall’s deputy during the Brown v. Board of Education days—tells of how southern governments frequently argued that civil rights litigators were bringing trumped-up lawsuits, and in some cases succeeded in shutting down the NAACP’s operations for years. During the trial in Brown, writes Greenberg, one of the parents whose child was being sent to a segregated school, caused a brief panic when a judge asked him “Didn’t you consent to be a plaintiff in this case?” because, writes Greenberg, “it was then a crime and grounds for disbarment to engage in ‘champerty,’ ‘maintenance,’ ‘running and clapping,’ and, colloquially, ‘ambulance chasing,’” and although the client had indeed agreed, Greenberg feared that he might say something that would lead the court to think otherwise:
Judge: You want to tell the Court why you joined this lawsuit?
The witness: That’s right.
Judge: All right, go ahead and tell it.
The Witness: Well, it wasn’t for the sake of hot dogs. It wasn’t to cast any insinuations that our teachers are not capable of teaching our children, because they are supreme, extremely intelligent, and are capable of teaching my kids or white kids or black kids. But my point was that not only I and my children are craving light, the entire colored race is craving light, and the only way to reach the light is to start our children together in their infancy and they come up together.
I think I speak for all our friends in public interest litigation—“conservative,” “liberal,” “libertarian,” or whathaveyou—when I say that all of our clients are craving light as well. When a person is sent to jail for moving dirt on perfectly dry property that federal bureaucrats have deemed “wetlands,” or are forbidden to do their job because of an irrational state law that says you can’t run a business without first getting permission from your own competition, or are barred from fostering or adopting a child because the federal government thinks you’re the wrong race—when an American’s constitutional rights are violated by government bureaucrats, they often turn to us to vindicate their rights. That’s a courageous decision—one that requires guts and patience. Our clients are real people, not fakes—and they aren’t in it for hot dogs. For Sen. Whitehouse to suggest otherwise is shameful.
We in public interest litigation have the highest respect and appreciation for our clients—the people who have suffered real injustice at the hands of the government. And we Americans have all benefitted from those who have had the courage to take a stand and be a plaintiff in one of the landmark cases that has vindicated our constitutional freedoms. That’s not a “concern”—it’s how our Constitution is supposed to work.
Timothy Sandefur is Vice President for Litigation at the Goldwater Institute.